Selling Of Property Declaration Of Trust.

My property has sold stc. I alone am named on the deeds. There is a declaration of trust between myself and ex partner who, because of this, still resides at the property. She will not sign the contract (the bit where it says she gains nothing from the proceeds) until she gets a guarantee of recieving her side of the proceeds under the trust. My conveyancer has stated that they cannot transfer this straight to her and only via a solicitor. The ex refuses to go to a solicitor saying it is unecessary even though I have agreed to pay half the cost. She has had a copy of the estimated breakdown of proceeds. Despite trying different ways of resolving this, I'm back to the start. What options have I got? Will I need to go to court to overule her signature? It seems my conveyancer has never had this issue before. Any help would be appreciated.

2 Answers

Lawyers are often nervous about dealing directly with unrepresented individuals and not without reason - there is a constant risk that a court of the ombudsman or SRA might decide that a lawyer has abused his position to the detriment of an innocent unsuspecting member of the public. For example your lawyer might say to your ex that she has to sign the contract or else she could end up in serious trouble. Your ex might then sign in the mistaken belief that if a lawyer says it it must be true. That could be viewed as "undue influence" which isn't allowed.

That said, this is maybe a case where your lawyer is being over cautious. Ordinarily I would expect your lawyer to write to your ex and explain the following:
1. that he acted for you and therefore could not give her advice as this would be a conflict of interest;
2. that the document(s) she is being asked to sign have legal implications;
3. that she could and should obtain independent legal advice but that she was not obliged to;
4. that you had advised that the sum of xxxx was due to her but that he could offer no opinion as to whether your assessment of the sum due was accurate
5. that she did not have to sign but if she did so and the matter proceeded to completion the sum of xxx would be paid to her from the sale proceeds

I would expect the letter to include a statement for her to sign and return which would read along the lines of "I have read and understood the attached letter and have [taken independent legal advice] / [had the opportunity to seek independent legal advice but chosen not to do so] (delete as applicable)".

In normal circumstances this should be enough to protect your conveyancer. In abnormal circumstances however it may not, such as if there is a question as to your ex's mental capacity or if English is not her first language, or if there is a possibility that you or someone else is exerting influence over her

Thank you very much for your answer. Much appreciated. I'll try and suggest this avenue to my conveyancer. Just to add, the ex is English.